Ethics and Piracy

[asleepathewheel]

Originally posted by Ned
Asleep at the wheel, the very purpose of an end-user license agreement is to impose postsale use restrictions on the purchaser. In almost every case where such postsale use restrictions have been tested in courts they had been found to be in violation of public policy and have not been enforced. So the extent that end user license agreements might be considered enforceable is the extent to which they are consistent with the traditional law of sales of goods.

I believe I said nearly all of the above, where's the disagreement?

[Ned]

Asleep, they are adhesion contracts with inherently suspect enforceability. To state that they are enforceable contracts without the caveat paints a very inaccurate picture.

[asleepathewheel]

Originally posted by Ned
Asleep, they are adhesion contracts with inherently suspect enforceability. To state that they are enforceable contracts without the caveat paints a very inaccurate picture.

I think its far more inaccurate to state that they are invalid on their face, which is what UR stated orginally which set off this barrage of legal blah blah. Far more inaccurate is actually being generous, as courts have upheld them, again look to ProCD. The vast majority of EULA language is valid, because its old fashioned contract law, like what you said.

Furthermore, I think I addressed the areas where EULAs have been found unconscionable, correct? This thread is long now, but was there one instance where I stated they would not adhere to the standards of contract law? That a EULA was treated as if it were handed down from God? If I did, it was an overstatement on my part and for that I apologize.

What is inaccurate about what I've said? Please tell me. I have gone through the cases quoted to me and explained what the reasoning and the repurcussions. I've distinguished them from the cases I cited and tried to explain the state of the law today. Where have I gone wrong?

[Whaleboy]

EDIT: WHALEBOY

You are holding an intriguing position on the pill issue.

I assume you believe any work that involves the production of an infinite resource to be worthless (in $, ), in that you don't have the right to charge something for it.

Correct. You can charge for the means, but not the information itself. Agathon is correct, what I am proposing is analogous to the GPL.

Hopefully this won't create unusable literature as a result jk

You're correct that technological solutions to protect IP will have negative effects. That sounds like blaming conventional property laws for the inconveniences associated with locks, etc

I don't like that analogy. The notion of material property, ones home, and thus locks, is clear cut, I think we can all agree, with the exception of some hardcore communists. Whether or not you agree with my position, I think it's plain to see here that the issue of IP is not clear cut.

If you make something people like, and ask for money (not demand) , you'll get it. Infact, there are alot of authors, programers, musicians, and artists of all kinds that are happy to see their work freely distributed, and anything that they get out of it is merely a bonus.

Myself included.

EDIT: Of course, this doesn't help the 'pop industry' - hollywood or game publishers/developers that release pieces of unoriginal garbage one after the other.

Of course, "art" designed to make money is bound to lose money unless it can fiercely defend the notion of IP. It is that which I am attacking.

Releasing music into the public domain is like releasing a wild animal into the forest. You lose control and for that reason you lose ownership.

That's probably the best analogy I've even seen you use, nicely done!!

This pretty much indicates that EULA and similar contracts are not enforcable.

Party, my house, tonight. Bring your own CDR's.

Well no, but it seems to me that it is also unethical to retain said information if the originator of this information expects payment for it.

Not to me, hence my argument that information once publicised is free as in GPL free. I guess we'll have to agree to disagree there. One can still of course be paid for ones efforts using the model I proposed, where one is paid a sum to write a book (and communicates it to the publishers so they might offer another commission), who then produces a load of books and sells them yadda yadda.

Not exactly, unless you acquire a piece of software, say, just for the purpose of evaluation.

True, it's not exact, but my point is unaffected imo. For example, reading a textbook on Philosophy means that I don't have to go out and buy Locke's "lets write a book but call it an essay to confuse people". Does that mean that he has can come back and haunt me via the legal system?

Surely you jest? Just because somebody leaves something out in the public does not mean it is ethical to take it for yourself.

When it comes to information (and I assume consent to release it and sound mind), then yes it is ethical.

Besides, the term "public domain" does have a very specific meaning as regards to copyrightable material such as music and books.

I would hope that I have provided a reasonable definition? Mine is ambiguous communication where one intends for anyone to look or buy etc. Private communication (private domain) is where you address the information to soandso on an unconditional basis.

You can release a work into public domain -- however this does not mean all pieces of work released are put into public domain.

By definition (mine), they are. One can either attack my distinction or my definition.

The advent of the Internet threatens to do away with the middleman - "publishing industry" as it were. However, I don't see how that renders the notion of copyright illegitimate. You have to realise copyrightable materials are not just about information, they are about creativity.

Creativity could be argued to be finite but I describe it more as an emotion, or a disposition of the artist, that is not being sapped by my reading of his product. It cannot be capital except to oneself in other words. For the purposes of narcissism, like I said, one can still be recognised as the author of a piece of work.

US courts have upheld EULAs. I direct you to ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) which held that shrinkwrap licenses are enforceable unless contrary to law or unconscionable. See also: Hill v. Gateway 2000, Inc. 105 F.3d 1147 (7th Cir. 1997) (where the contract was held to be valid even though it was never closely read). For clickwrap license see: Hotmail Corp. v. Van Money Pie, Inc., 1998 WL 388389 (N.D.Cal.)

Conceded, however I doubt Microsoft has the ability to take on everybody who commits that "crime". If they did, or the great majority of them, then it would be an enforcable law.

Does anyone reckon that the anti-IP people here are really really pissing off some secret RIAA attache assigned to monitor Apolyton? MtG, I'm looking in your direction...

[Ned]

Originally posted by asleepathewheel


I think its far more inaccurate to state that they are invalid on their face, which is what UR stated orginally which set off this barrage of legal blah blah. Far more inaccurate is actually being generous, as courts have upheld them, again look to ProCD. The vast majority of EULA language is valid, because its old fashioned contract law, like what you said.

Furthermore, I think I addressed the areas where EULAs have been found unconscionable, correct? This thread is long now, but was there one instance where I stated they would not adhere to the standards of contract law? That a EULA was treated as if it were handed down from God? If I did, it was an overstatement on my part and for that I apologize.

What is inaccurate about what I've said? Please tell me. I have gone through the cases quoted to me and explained what the reasoning and the repurcussions. I've distinguished them from the cases I cited and tried to explain the state of the law today. Where have I gone wrong?

Asleep, I have no disagreement with you post.

[Ned]

Whaleboy, discussing the issue of music and filesharing in the way we are is hardly anti-IP. I have consistently argued that protection of IP is fundamental to its creation.

[Whaleboy]

Whaleboy, discussing the issue of music and filesharing in the way we are is hardly anti-IP. I have consistently argued that protection of IP is fundamental to its creation.

Mine is. My argument is that information cannot be property. I am not arguing against the right of the author to be recognised as such.

[Ned]

Originally posted by Whaleboy


Mine is. My argument is that information cannot be property. I am not arguing against the right of the author to be recognised as such.

In a way you are right.

Do you mind a few questions though?

Start with, do you know what a trade secret is?

[Whaleboy]

Do you mind a few questions though?

It's why I'm here...

Start with, do you know what a trade secret is?

Nope . Do go on...

[Ned]

Let us say, you know the secret of steel (ala Conan the Barbarian). Only you know how to make steel. You tell no one else. You make a lot of money because only you can make it.

The secret of steel is a trade secret.

Second question, should you be protected by law against someone stealing your secret?

[Whaleboy]

Second question, should you be protected by law against someone stealing your secret?

Yes. One assumes that you do not release a trade secret into the public domain by my definition (undirected communication), in which case, if you are to steal it, you are to impose upon that person, or invade their personal realm, so yes the law should protect you.

[Ned]

Good.

Next question, what should the remedy be against the thief?

Would you agree with an injunction preventing his further exploitation of your secret?

[Whaleboy]

Next question, what should the remedy be against the thief?

Would you agree with an injunction preventing his further exploitation of your secret?

That's a tough question. I concern myself with what is a crime, not the question of proportional punishment, so I feel unqualified to answer that question . Where were you going with it?

[Ned]

Whaleboy, the traditional remedy is an injunction. If you can accept that, we can move on.

Let us assume that the thief has also disclosed the secret to others. What is the court to do now?

[Urban Ranger]

Originally posted by asleepathewheel
Please explain what you mean.

UCITA is supposedly an extension of the UCC that were to be adopted by various states individually. However, the formulation was such that it basically legitimize EULA as valid contracts regardless of opressiveness and other factors. So far most states have not adopted it, and it is generally considered a failure.